Ssa (draft04)(05 10 2009)(fp)
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    Ssa (draft04)(05 10 2009)(fp) Ssa (draft04)(05 10 2009)(fp) Document Transcript

    • DATED THIS DAY OF , 2009 BETWEEN DATO’ DR. ABDUL RAZAK (NRIC No. 500318-10-5699) (“Vendor”) AND LAGENDA JEJAKA SDN BHD (Company No. 865887-P) (“Purchaser”) ******************************************************* SHARE SALE AGREEMENT ******************************************************** ADNAN SUNDRA & LOW ADVOCATES & SOLICITORS KUALA LUMPUR [Ref: LEA-UNIV/20070603/WCC/NTY]/mnt/temp/unoconv/20121106070025/ssadraft0405102009fp-121106010024-phpapp02.doc
    • ContentsWhereas:...........................................................................................................................................11. INTERPRETATION..................................................................................................................1 1.1 Definitions..................................................................................................................1 1.2 Interpretation.............................................................................................................32. Sale and Purchase.......................................................................................................................4 2.1 Sale and Purchase of Sale Shares.............................................................................43. Consideration..............................................................................................................................4 3.1 Purchase Price............................................................................................................4 3.2 Purchase Price............................................................................................................44. Conditions...................................................................................................................................45. The Vendor’s obligations pending Completion...................................................................6 5.1 Vendor’s obligations.................................................................................................66. Completion..................................................................................................................................6 6.1 When Completion takes place.................................................................................6 6.2 Mechanics of Completion.........................................................................................77. Warranties...................................................................................................................................8 7.1 Warranties from Vendor...........................................................................................8 7.2 Warranties and Covenants from Purchaser...........................................................98 Termination..................................................................................................................................9 8.1 Vendor’s breach.........................................................................................................9 8.2 Purchasers breach...................................................................................................109. General.......................................................................................................................................10 9.1 Notices......................................................................................................................10 9.2 Governing law.........................................................................................................11 9.3 Enforceability / Severability..................................................................................11 9.4 Waivers.....................................................................................................................11 9.5 Variation...................................................................................................................11 9.6 Cost and expenses...................................................................................................11 9.7 Further assurances...................................................................................................12 9.8 Entire agreement......................................................................................................12 9.9 Time...........................................................................................................................12 9.10 Successors bound...................................................................................................12 9.11 Announcements....................................................................................................12 9.12 Date of Agreement................................................................................................12 9.13 Arbitration..............................................................................................................12 9.14 Specific Performance.............................................................................................13 9.15 Assignment.............................................................................................................13 9.16 Counterparts..........................................................................................................13
    • Schedules1. (a) Audited Accounts........................................................................... (b) Management Accounts...................................................................2. Vendor’s Warranties.................................................................................3. Copy of the letter dated 4 April 2008 issued by MITI to the Malaysian Industrial Development Authority..............................................................
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009This Agreement is made on the day of , 2009 between:(1) DATO’ DR. ABDUL RAZAK (NRIC No. 500318-10-5699) of No. 4, Jalan 11/4C, Seksyen 11, 40100 Shah Alam, Selangor Darul Ehsan (the “Vendor”);and(2) LAGENDA JEJAKA SDN BHD (Company No. 865887-P), a company incorporated in Malaysia with its registered address at Pusat Perdagangan Puchong Prima, E-03-05, Block E, Jalan Prima 5/3, Taman Puchong Prima, 47100 Puchong, Selangor (the “Purchaser”).Whereas:(A) FEDERAL POWER SDN BHD is a private limited company incorporated in Malaysia on [ ] with its registered address at Lot 8, Jalan Ragum 15/17, 40000 Shah Alam, Selangor Darul Ehsan (the “Company”). As at the date of this Agreement, the Company has an authorised share capital of RM100,000,000.00 divided into 100,000,000 ordinary shares of RM1.00 each of which RM36,951,092.00 comprising 36,951,092 ordinary shares of RM1.00 each have been issued and are credited as fully paid-up. The Vendor owns 50.46% of the issued and paid up share capital in the Company. The remaining issued and paid up share capital in the Company is held by Fujikura Ltd (The Fujikura Cables Works Ltd) (10.95%), Tenaga Nasional Berhad (8.91%) and FCW Industries Sdn Bhd (29.68%) (collectively, the “Remaining Shareholders”). The Company is in the business of manufacturing power cables.(B) The Vendor has agreed to sell and transfer to the Purchaser the Sale Shares (defined below) and the Purchaser has agreed to purchase the Sale Shares upon the terms and subject to the conditions set out in this Agreement.It is agreed as follows:1. INTERPRETATION1.1 Definitions In this Agreement unless the context requires otherwise: Accounts Collectively, the Audited Accounts and the Management Accounts; Accounts Date 31 December 2008;
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 Audited Accounts The audited accounts of the Company as at the Accounts Date, a copy of which is annexed hereto as the First Schedule; Auditor The Company’s auditor for the time being and, as at the date of this Agreement, Messrs Ernst & Young of [ ]; Agreement This written agreement (including the schedules) and any document which amends or is supplemental to this agreement; Business Day A day on which banks are open for a full range of banking business in Selangor, not being a Saturday, Sunday or public holiday; Company FEDERAL POWER SDN BHD (Company No. 17892-V), a private limited company incorporated in Malaysia with its registered address at Lot 8, Jalan Ragum 15/17, 40000 Shah Alam, Selangor Darul Ehsan Completion The completion of the sale and purchase of the Sale Shares in accordance with Clause 6.2; Completion Date The date on which Completion is to take place under Clause 6.1; Conditions Precedent Has the meaning given to that expression in Clause 4.1; Consideration Shares 101,999 ordinary shares of RM1.00 each in the share capital of the Purchaser issued at the issue price of RM1.00 and as fully paid-up; Cut-Off Date The date falling three (3) months from the date of this Agreement; Encumbrance Any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, title retention, preferential right or trust arrangement or other security arrangement or agreement conferring a right to a priority of payment; Extended Cut-Off Date Has the meaning given to that expression in Clause 4.5; Further Consideration cash consideration of Ringgit Malaysia Ninety Seven Thousand Nine Hundred and Ninety Nine (RM97,999.00) payable by the Purchaser to the Vendor; Management Accounts the unaudited management accounts of the Company made up from 1 January 2009 until [ ]1 prepared by the Company, a copy of which is annexed hereto as the First Schedule; MITI The Ministry of International Trade and Industry;1 To insert latest practicable date. 2
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 Parties Means the parties to this Agreement and “Party” shall be construed accordingly; Purchase Price Has the meaning given to that expression in Clause 3.1; Purchaser’s Solicitors Messrs Adnan Sundra & Low, Advocates and Solicitors of Level 11, Menara Olympia, No. 8 Jalan Raja Chulan, 50200 Kuala Lumpur and shall include such other firm of solicitors as may from time to time be appointed by the Purchaser in substitution thereof; Remaining Shareholders Has the meaning given to that expression in Recital A; Sale Shares Has the meaning given to that expression in Clause 2.1; Unconditional Date Has the meaning given to that expression in Clause 4.9; and Warranties All representations and warranties given by the Vendor in this Agreement, including the representations and warranties set out in the Second Schedule to this Agreement.1.2 Interpretation In this Agreement, unless the context requires otherwise: (a) headings and underlinings are for convenience only and do not affect the interpretation of this Agreement; (b) words importing the singular include the plural and vice versa; (c) words importing a gender include any gender; (d) an expression importing a natural person includes any corporation or other body corporate, partnership, association, regulatory authority, two or more persons having a joint or common interest, or any other legal or commercial entity or undertaking; (e) a reference to a Party to a document includes that Partys successors and permitted assigns; (f) any part of speech or grammatical form of a word or phrase defined in this Agreement has a corresponding meaning; (g) any reference to the provisions of any legislation or regulations made under such legislation includes any statutory modification, amendment, revision, replacement or re-enactment of the same; (h) no rule of construction applies to the disadvantage of a Party because the Party was responsible for the preparation of this Agreement or any part of it; and (i) where the day on or by which any thing is to be done is not a Business Day that thing must be done on or by the following Business Day. 3
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20092. Sale and Purchase2.1 Sale and Purchase of Sale Shares Subject to the terms and conditions of this Agreement and in particular the fulfilment of the conditions set out in Clause 4.1, the Vendor agrees to sell and transfer to the Purchaser, and the Purchaser agrees to purchase from the Vendor, eighteen million six hundred and forty six thousand eight hundred and seventy five (18,646,875) ordinary shares of RM1.00 each or approximately fifty point four six per cent (50.46%) of the shares in the issued and paid up share capital of the Company (the “Sale Shares”) free from all Encumbrances together with all rights and benefits whatsoever attaching to the Sale Shares from the Completion Date for the consideration set out in Clause 3.3. Consideration3.1 Purchase Price (a) The total consideration for the sale and purchase of the Sale Shares herein (the “Purchase Price”) is Ringgit Malaysia One Hundred and Ninety Nine Thousand Nine Hundred and Ninety Eight (RM199,998.00) only, which is arrived at on a willing buyer-willing seller basis, payable by the Purchaser to the Vendor in accordance with Clause 6.2. (b) The Purchase Price shall be satisfied partly in cash and partly in shares in the manner set out below:- (i) by the issue and allotment by the Company on the Completion Date of the Consideration Shares; and (ii) by the payment to the Vendor of the Further Consideration.3.2 Purchase Price The Purchaser shall pay to the Vendor the Purchase Price at Completion in accordance with Clause 6.2.4. Conditions4.1 Completion shall be conditional upon the approval of MITI to the Purchaser’s acquisition of the Sale Shares from the Vendor and such other governmental or regulatory approvals (if any) having been obtained (“Conditions Precedent”).4.2 The Purchaser shall, at its own cost, use all reasonable endeavours to procure that the Conditions Precedent are satisfied as soon as possible and in any event by the Cut-Off Date. The Purchaser shall make the application to MITI referred to in Clause 4.1 within fourteen (14) Business Days from the date of this Agreement and shall forward to the Vendor a copy of all applications and notification, approvals, rejections, appeal and acknowledgment, as applicable, within two (2) days of the same being submitted or received.4.3 The Vendor shall promptly provide the Purchaser with all reasonable assistance necessary for the Condition Precedent to be satisfied and shall use all reasonable endeavours to provide the Purchaser with any necessary information 4
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 required for the purpose of making any submissions, notifications and filings and in any case, within seven (7) days from the date of requisition.4.4 If the Purchaser, acting reasonably, is of the opinion that any approval, notification and/or confirmation referred to in Clause 4.1 contains any onerous condition which has a materially prejudicial effect on it, it will promptly meet with the Vendor to discuss the relevant matter and will co-operate with one another in approaching the relevant authority to, and will use their reasonable endeavours to, achieve amendment of the relevant condition such that it is no longer onerous and/or materially prejudicial.4.5 In the event any of the Conditions Precedent is not fulfilled by the Cut-Off Date by reason that one or more approval, acknowledgment and/or confirmation is or are pending from the relevant authorities or if an application is rejected or an appeal is outstanding, the date for fulfilment of the Conditions Precedent shall be automatically extended for a further period of [three (3)] months from the Cut-Off Date (the “Extended Cut-Off Date”) provided that if the Conditions Precedent is not fulfilled by the Extended Cut-Off Date, either Party may elect to terminate this Agreement and the Vendor shall refund to the Purchaser, free of interest, all other monies paid by the Purchaser to the Vendor pursuant hereto and thereafter this Agreement shall be null and void and be of no further effect and neither Party shall have any right or claim against the other save in respect of any antecedent breach.4.6 The neglect, failure and/or refusal by any party to do any procedural or preparatory deed and/or act required to be done to obtain the fulfilment of the Conditions Precedent shall be a breach of condition on the part of the party so neglecting, failing and/or refusing to do such deed and/or act and the non- defaulting party shall be entitled to claim against the defaulting party for all losses, damages, costs and expenses incurred up to the time of termination.4.7 The Vendor and Purchaser may, by mutual agreement, waive satisfaction of any Condition Precedent, to the extent permitted under the laws.4.8 The Vendor and Purchaser shall notify the other of the satisfaction of the Conditions Precedent within two (2) Business Days after it receives the original letter of such satisfaction or a certified true copy thereof.4.9 The date on which the last of the Conditions Precedent is satisfied with the original letter of approval of a certified true copy thereof received by the Purchaser or waived in accordance with Clause 4.7 shall be referred to as the “Unconditional Date”.4.10 If, prior to Completion, the Purchaser gives the Vendor a written notice that Completion will not proceed due to an event or circumstance which has resulted in, or could reasonably be expected to result in, a change in the financial condition, business or prospects of the Company which could restrict, impede or prohibit the Company from carrying on with its business which, in the reasonable opinion of the Purchaser, has resulted in, or could reasonably be expected to result in, a material adverse change to, or have a material adverse effect on, the Purchaser’s assessment of the purchase of the Sale Shares, then the Purchaser may terminate this Agreement by seven (7) days’ notice to the Vendor whereupon this Agreement shall terminate provided that such termination shall be without prejudice to the Purchaser’s rights (including the rights to damages) and remedies against the Vendor for and in respect of antecedent breaches. 5
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20095. The Vendor’s obligations pending Completion5.1 Vendor’s obligations Except as permitted in this Agreement, the Vendor will ensure that as from the date of this Agreement and pending Completion, the Company shall:- (a) continue to conduct its business as stipulated under the recitals according to its respective present practice and in the ordinary course of business; (b) not sell, transfer, lease, let or encumber or dispose of all or a substantial part of its assets or undertakings other than in its ordinary course of its business; (c) not create or issue or agree to create or issue any share or loan capital or give or agree to give any option or right or interest in respect of any share or loan capital; (d) not incur any liability, obligation or commitment or enter into any long term contract; (e) not alter its Memorandum and Articles of Association in any respect except in compliance with requirements of law or any authorities, or as may be necessary to give effect to the terms of this Agreement; (f) not pay or agree to pay to the existing employees, its directors or officers or any of them any increased remuneration or other emoluments or benefits whatsoever other than those that have been disclosed to and agreed to by the Purchaser unless the same is a statutory requirement or is required under any existing agreement(s) binding on it; (g) not pay or declare any dividend or make any other distribution; (h) deliver to the Purchaser, the monthly management accounts in substantially the same format as the Management Accounts, in relation to the period commencing from [ ] until the last day of the month immediately preceding the Completion Date, no later than the 7th day of each month in respect of the calendar month immediately preceding; (i) not issue any guarantees or indemnities or extend any loans; (j) not in any way cause or do or suffer to be done anything whereby the current or capital assets of the Company may or shall be materially depleted or the financial position or the net asset position of the Company may materially be rendered less favourable than as at the Accounts Date.; and (k) appoint any new directors or employees or vary the terms of any existing contracts of service.6. Completion6.1 When Completion takes place Subject to:- (a) the Conditions Precedent having been fulfilled and provided that none of the approvals referred to in Clause 4.1 has been revoked or varied in a material respect; 6
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 (b) there being, in the reasonable opinion of the Purchaser, no material adverse change to the condition (financial or otherwise), business, prospects or operations of the Company; (c) the Vendor’s Warranties remaining true and accurate and not misleading in any material respect at Completion as if repeated at Completion; and (d) there being no material breach of the undertakings in Clause 5.1, the Parties shall proceed with Completion in the manner set out in this Clause 6. Completion shall take place on the date which is [thirty (30)] days (or such other date as the Parties may agree) after the Unconditional Date (“Completion Date”) at the office of the Purchaser’s Solicitors or such other mutually agreed place.6.2 Mechanics of Completion On the Completion Date:- Vendor’s obligations (a) the Vendor is to deliver or cause to be delivered to the Purchaser the following:- (i) the original share certificates in respect of the Sale Shares together with undated share transfer forms in relation to the Sale Shares duly executed by the Vendor in favour of the Purchaser; (ii) the completed stamping proforma (Borang PDS 6) of the Company together with the latest original and certified true copy of the audited accounts of the Company to enable the adjudication of the stamp duty payable on the transfer of the Sale Shares; (iii) a certified true copy of the resolution of the Board of Directors of the Company:- (aa) approving and accepting the transfer and registration of the Sale Shares in favour of the Purchaser; (bb) appointing with immediate effect such persons to be nominated by the Purchaser to be the new directors and the company secretary of the Company; (cc) revoking existing mandates given by the Company for the operation of the Company’s bank accounts and grant a new mandate to the directors or persons nominated by the Purchaser to operate the Company’s bank accounts; (dd) the resignation letters of [ ] as a director in and [ ] as the company secretary of the Company to take effect from the Completion Date; and (ee) such other documents as may be required by the Purchaser to obtain good title to the Sale Shares free from any Encumbrances and to enable the Purchaser to become the registered holders thereof; Purchaser’s obligations 7
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 (b) upon receipt by the Purchaser or the Purchaser’s Solicitors of the documents referred to in Clause 6.2(a)(i), the Purchaser shall, before 5.00 p.m. Malaysian time on the Completion Date:- (i) issue and allot the Consideration Shares and take immediate and irrevocable steps to cause the issuance of the share certificate(s) for the Consideration Shares as soon as practicable after the Completion Date; and (ii) pay to the Vendor by cheque the Further Consideration.7. Warranties7.1 Warranties from Vendor The Vendor warrants to the Purchaser to the extent that the provisions of this Clause shall continue to have effect until the transfer of the Sale Shares in favour of the Purchaser has been registered as follows:- (a) it has full legal right, power and authority to execute, deliver and perform its obligations under this Agreement and all such other agreement, deeds, documents and instruments as are specified or referred to in this Agreement; (b) it has taken all actions necessary to enter into and perform this Agreement; (c) he is not an undischarged bankrupt and this Agreement is a legal, valid and binding agreement of the Vendor enforceable against the Vendor in accordance with the terms of this Agreement; (d) the remaining 45.53% of the issued and paid-up share capital in the Company is held by the Remaining Shareholders in the proportion stipulated in Recital A; (e) there is no subsisting joint venture agreement, shareholders agreement or any other agreements or arrangements between the Vendor and the Remaining Shareholders and/or the Company which grants any pre- emptive rights in favour of any of the Remaining Shareholders or otherwise restricts the right of the Vendor to sell, transfer and/or otherwise dispose of the Sale Shares to the Purchaser; (f) there is no consent required from any third party for the sale by the Vendor to the Purchaser of the Sale Shares save for those consents required to satisfy the Conditions Precedent; (g) the statements set out in Recital A are true, complete and accurate in all material respects and there is no material omission; and (h) each of the Warranties set out in The Second Schedule is true, accurate and not misleading. 8
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20097.2 Warranties and Covenants from Purchaser The Purchaser warrants to the Vendor that:- (a) it has full legal right, power and authority to execute, deliver and perform its obligations under this Agreement and all such other agreement, deeds, documents and instruments as are specified or referred to in this Agreement; (b) it has taken all corporate and other actions necessary to enter into and perform this Agreement; (c) this Agreement is a legal, valid and binding agreement of the Purchaser enforceable against the Purchaser in accordance with the terms of this Agreement; (d) the Consideration Shares issued and allotted to the Vendor in accordance with Clause 6.2(b)(i) shall:- (i) be created as fully paid-up on issuance thereof; (ii) be free from all Encumbrances; and (iii) rank pari passu in all respects with existing issued ordinary shares of the Purchaser and shall have all rights, benefits and advantages including the right to receive in full all dividends and other distributions declared, made or paid, the entitlement date of which falls after the date of its allotment and issuance.7.3 Breach of Warranties In the case of any breach of the aforesaid warranties and non-compliance with any of the provisions of this Agreement occurring prior to the transfer of the Sale Shares in favour of the Purchaser, the provisions of Clause 8.1 or Clause 8.2 (as applicable) shall apply mutatis mutandis.8 Termination8.1 Vendor’s breach If the Vendor defaults in completing the sale of the Sale Shares in accordance with the terms of this Agreement or commits a material breach of the provisions of this Agreement and such default is either incapable of remedy or if capable of remedy has not been remedied within thirty (30) days of the Purchaser’s service of a notice on the Vendor requiring such breach to be remedied, the Purchaser shall be entitled, at its option, either to:- (a) claim specific performance of this Agreement and all reliefs flowing therefrom; or (b) terminate this Agreement by notice in writing to the Vendor whereupon this Agreement shall terminate provided that such termination shall be without prejudice to the Purchaser’s rights (including the rights to damages) and remedies against the Vendor for and in respect of such breach. 9
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20098.2 Purchasers breach If the Purchaser fails, refuses or is unable to pay the Purchase Price in accordance with Clause 3 and/or commits any other material breach of the provisions of this Agreement and such default is either incapable of remedy or if capable of remedy has not been remedied within thirty (30) days of the Vendor’s service of a notice on the Purchaser requiring such breach to be remedied, the Vendor shall be entitled to terminate this Agreement by notice in writing to the Purchaser whereupon this Agreement shall terminate provided that such termination shall be without prejudice to the Vendor’s rights (including the rights to damages) and remedies against the Purchaser for and in respect of such breach.9. General9.1 Notices A notice or other communication including, but not limited to, a request, demand, consent or approval to or by a Party to this Agreement:- (a) must be in legible writing and in English addressed as shown below: (i) if to the Vendor: No. 4, Jalan 11/4C Section 11 40100 Shah Alam Selangor Darul Ehsan Attention: Dato’ Dr. Abdul Razak Fax No: 03 – 5519 8020 & 03 – 5512 5204 (ii) if to the Purchaser: Pusat Perdagangan Puchong Prima E-03-05, Block E, Jalan Prima 5/3 Taman Puchong Prima 47100 Puchong Selangor Attention: [ ] Fax No: 03 – 8062 3659 (b) is deemed to be given by the sender and received by the addressee: (i) if by delivery in person, when delivered to the addressee; (ii) if by post, three (3) days from and including the date of postage; or (iii) if sent by facsimile transmission, immediately after successful transmission thereof and evidenced by a transmission confirmation report, 10
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 but if the delivery or receipt is on a day which is not a Business Day or is after 6.00 pm it is deemed to be given at 9.00 am on the next Business Day; and (c) can be relied on by the recipient and the recipient will not be liable to any other person for any consequences of that reliance if the recipient believes it to be genuine, correct and duly authorised by the sender.9.2 Governing law This Agreement is governed by the laws of Malaysia and the Parties irrevocably submit to the non-exclusive jurisdiction of the courts of Malaysia.9.3 Enforceability / Severability (a) If one or more of the provisions of this Agreement shall be invalid, illegal or unenforceable in any respect under any applicable law or decision, the validity, legality or enforceability of the remaining provisions contained herein shall not be affected or impaired in any way. (b) Each Party shall, in any such event, execute such additional documents as the other Party may reasonably request in order to give valid, legal and enforceable effect to any provision which is determined to be invalid, illegal or unenforceable. (c) If any provision shall be void, illegal or unenforceable but would be valid and enforceable if read down, then that provision shall be read down to the extent necessary to render the provision valid and enforceable.9.4 Waivers (a) Waiver of any breach of this Agreement or of any right, power, authority, discretion or remedy arising upon a breach of or default under this Agreement, must be in writing and signed by the Party granting the waiver. (b) A breach of or default under this Agreement is not waived by any failure or delay in exercising or partial exercise of any right, power, authority, discretion or remedy under this Agreement. (c) A right, power, authority, discretion or remedy created or arising upon a breach of or default under this Agreement is not waived by any failure or delay in the exercise, or a partial exercise, of that or any other right, power, authority, discretion or remedy.9.5 Variation A variation of any term of this Agreement must be in writing and signed by the Parties.9.6 Cost and expenses (a) The Purchaser shall bear the stamp duty payable in respect of the transfer of the Sale Shares to the Purchaser. (b) Each Party shall bear its own costs (including legal fees) and expenses in respect of the preparation and execution of this Agreement. 11
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20099.7 Further assurances Each Party must do all things necessary (including, but not limited to, executing all documents) to give effect to this Agreement.9.8 Entire agreement This Agreement is the entire agreement between the Parties in respect of its subject matter and supersedes all previous agreements with respect to its subject matter.9.9 Time Time whenever mentioned in this Agreement shall be of the essence.9.10 Successors bound This Agreement shall be binding on and shall enure for the benefit of the respective successors-in-title and permitted assigns of each of the Parties.9.11 Announcements Except for disclosures required by law, relevant regulatory authority, stock exchange, any court of competent jurisdiction, or pursuant to any enquiry or investigation by any governmental agency or authority having jurisdiction over the Vendor or the Purchaser or the transaction contemplated in this Agreement which is lawfully entitled to require any such disclosure or disclosure to the Parties’ professional advisers, the Parties agree that (the contents of this Agreement and all information and documents provided by one Party to the other Party in connection with this Agreement will be held in strict confidence by each Party and its respective officers, employees, agents and servants other than such information which is or becomes available to the public by publication or otherwise through no fault of the recipient party.9.12 Date of Agreement This Agreement may be signed on various dates for the sole convenience of all the Parties and in different counterparts and date as stated on this Agreement shall be final and conclusive as to the date of this Agreement.9.13 Arbitration (a) Any dispute or difference between the Parties relating to this Agreement shall be finally decided by arbitration by a single arbitrator appointed by agreement between the Parties or, in default of such agreement within 30 days of either Party first requesting that a single arbitrator be so appointed, by the director, for the time being, of the Regional Centre for Arbitration at Kuala Lumpur. (b) The arbitration shall be conducted in English and under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL) and the Rules of the Kuala Lumpur Arbitration Centre, in force at the time of the reference to arbitration. (c) The award of the arbitrators or arbitrator, appointed under this Clause 9.13, shall be final and binding on both Parties. (d) The costs of arbitration, in principle, are to be borne by the unsuccessful Party. However, the arbitrator, appointed under this Clause 9.13, may 12
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 apportion each of such costs between the Parties if he determines that apportionment is reasonable taking into account the circumstances of the case. (e) The venue of any arbitration will be Kuala Lumpur. (f) The right to arbitrate disputes or claims survives the termination or cancellation of this Agreement.9.14 Specific Performance Without prejudice to any remedies which may be available to the Purchaser, the Purchaser shall be entitled to the remedy of specific performance of this Agreement and the Vendor agrees that damages will not be an adequate remedy for breach of any of its obligations under this Agreement.9.15 Assignment Save as otherwise provided herein, the benefits and obligations of the Parties are personal to that Party and will not be capable of being assigned, delegated, transferred or otherwise disposed of save with the written consent of the other Parties.9.16 Counterparts This Agreement may be executed in a number of counterparts. This Agreement comprises all the counterparts taken together. - The remainder of this page has been intentionally left blank - 13
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 The First Schedule (a) Audited Accounts (Referred to in Clause 1.1 hereof)The First Schedule
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 (b) Management Accounts (Referred to in Clause 1.1 hereof)The First Schedule
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 The Second Schedule Vendors Warranties (Clause 1.1)1. The Company1.1 The Company is incorporated in Malaysia and is duly registered and validly existing under the laws of Malaysia and has complied with all applicable material provisions of the Companies Act 1965.1.2 The Company has the power to own its assets and carry on its business as is now being conducted.1.3 There are no outstanding rights, subscriptions, warrants, calls, pre-emptive rights, options, employee share option schemes or other contracts or agreements of any kind to purchase, subscribe or otherwise to receive from the Company any shares in the capital of the Company or securities of any kind convertible into any share in the capital of the Company.1.4 The sale and purchase of the Sale Shares and the settlement of the Purchase Price as envisaged in this Agreement will not result in the Company being in default of any agreement or contract to which the Company is a party to nor does it give rise to any right in any counterparty to such an agreement to terminate the agreement.1.5 The only equity condition imposed by MITI pursuant to all manufacturing licences issued to the Company under the Industrial Co-Ordination Act 1975 is as set out in the letter dated 4 April 2008 issued by MITI to the Malaysian Industrial Development Authority and reproduced below:- “Sekurang-kurangnya 76% daripada saham-saham syarikat ini hendaklah dibeli dan dipegang oleh rakyat Malaysia termasuk sekurang-kurangnya 51% dikhaskan dan syarikat ini hendaklah berunding dengan Kementerian Perdagangan Antarabangsa dan Industri sebelum pembahagian saham-saham yang dikhaskan itu dilakukan.” A copy of the said letter is annexed hereto as the Third Schedule.1.6 No unlawful distribution has been made by the Company.2. The Sale Shares2.1 The Sale Shares are fully paid up and there are no moneys owing to the Company or any other person in respect of them.2.2 The Vendor is the legal and beneficial owner of the Sale Shares.2.3 The Vendor is competent and entitled to transfer the legal and beneficial ownership of the Sale Shares without the consent of any of the Remaining Shareholders or any other person and free of any pre-emptive rights or rights of first refusal and free of any mortgage, charge, lien or other Encumbrance.2.4 The Sale Shares are not subject to any competing interest or claims by any party.The Second Schedule
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20093. Accounts, etc.3.1 The Audited Accounts have been prepared in accordance with accounting principles, standards and practices generally accepted as at the Accounts Date in Malaysia so as to give a true and fair view of the state of affairs of the Company as at the Accounts Date. The Audited Accounts has disclosed and made adequate provision for all material contingent liabilities and make provisions reasonably regarded as adequate for all material bad and doubtful debts in accordance with good accounting practices and proper provision or reserve for taxation has been made in accordance with generally accepted accounting principles and standard.3.2 The Management Accounts:- (a) have been prepared on a basis consistent with that warranted as adopted in the preparation of the Accounts; (b) are and will be accurate in all material respects and show a fair view of the assets and liabilities of the Company and of its results for the financial period it relates to; and (c) make full provision or reserve for all liabilities and other matters warranted as provided for or reserved in the Audited Accounts such that the Company has no liabilities of any nature whatever other than those disclosed or provided for in the Management Accounts.3.3 The Company does not have any liability (actual or potential) which is not shown or otherwise specifically provided for in the Accounts.4. Litigation4.1 As at the date of this Agreement:- (a) no Action (hereafter defined) or claim sounding in damages has been made against the Company; (b) save as disclosed below, the Company is not engaged whether as plaintiff or defendant or otherwise in any other legal action, proceedings or arbitration or is being prosecuted for any criminal offence and there are no such proceedings or prosecutions pending or are likely or imminent or threatened and there are no circumstances arising that may give rise to such proceedings or prosecutions:- (a) [ ]; and (b) [ ]. (c) there are no investigations, disciplinary proceedings or other circumstances known to the Vendor or to any of the directors of the Company likely to lead to any such claim or legal action, proceedings or arbitration or prosecution. The term "Action" as used in this Schedule means any demand, action, order, writ, injunction, judgment or decree outstanding or any claim, suit, litigation, proceeding at law or in equity, labour dispute, complaints, references, arbitral action, governmental audit or governmental investigation.The Second Schedule
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20095. Taxation5.1 As at the date of this Agreement, save as disclosed in the Accounts there is in relation to the Company no liability to Taxation (hereafter defined) in respect of which a claim could be made and there are no reasonably foreseeable circumstances likely to give rise to such a liability. The term "Taxation" as used in this Schedule means any tax, duty, levy, past or present, of Malaysia or elsewhere, whether governmental, state, provincial, local governmental or municipal, including but not limited to income tax (including income tax required to be deducted or withheld from or accounted for in respect of any payment), sales tax, company tax, excise duty, customs and other import or export duties, rates and stamp duty.6. Tax returns6.1 As at the date of this Agreement, the Company has duly made all returns and given or delivered all notices, accounts and information which on or before the date of this Agreement ought to have been made, given or delivered for the purposes of Taxation and all such returns, notices, accounts and information (and all other information supplied to the appropriate tax or other fiscal authority concerned) are correct and have been made on a proper basis and none of such returns, notices, accounts or information is disputed in any material respect by the fiscal authority concerned and there is no fact reasonably known to the Vendor which might be the occasion of any such dispute or of any claim for Taxation in respect of any financial period down to and including the Accounts Date not provided for in the Audited Accounts.7. Title to assets7.1 Except for assets disposed of by the Company in the ordinary course of business, the Company is the owner of and has good marketable title to all assets included in the Audited Accounts and to the best of the knowledge, information and belief of the Vendor, all assets acquired since the Accounts Date and not subsequently disposed of and all such assets are in the Company’s possession or under its control.7.2 There is no Encumbrance or agreement to create an Encumbrance over the whole or any part of the undertaking property assets goodwill or uncalled capital of the Company.7.3 The fixed and loose plant and machinery fixtures and fittings vehicles and office equipment used by the Company in connection with its business are:- (a) in good repair and condition and regularly maintained; and (b) capable of being efficiently and properly used in connection with the business of the Company.7.4 The stock-in-trade of the Company is in good condition and free from defects and is capable of being sold by the Company in the ordinary course of its business in accordance with its prevailing market price.The Second Schedule
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 20098. Insurance8.1 All the stock-in-trade, and the assets and undertakings of the Company of an insurable nature, are, and have at all material times been, insured in amounts representing their full replacement or reinstatement value against fire and other risks normally insured against by persons carrying on the same business as that carried on by the Company.8.2 The Company is now, and has at all material times been, adequately covered against accident, damage, injury, third party loss (including product liability), and other risks normally insured against by persons carrying on the same business as that carried on by the Company.8.3 All such insurance is currently in full force and effect, and nothing has been done or omitted to be done which could make any policy of insurance void or voidable, or which is likely to result in an increase in premium.8.4 None of the said policies is subject to any special or unusual terms or restrictions or to the payment of any premium in excess of the normal rate.8.5 No claim is outstanding, or may be made, under any of the said policies and no circumstances exist which are likely to give rise to such a claim.The Second Schedule
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009 The Third Schedule Copy of the letter dated 4 April 2008 issued by MITI to the Malaysian Industrial Development Authority (Section 1.5 of the Second Schedule)The Third Schedule
    • Share Sale Agreement Vendor: Dato’ Dr. Abdul Razak Purchaser: [ ] Draft dated 14 January 2009Executed as an Agreement the day and year first stated above.Signed byon behalf of DATO’ DR. ABDULRAZAK (NRIC No. 500318-10-5699) inthe presence of:WitnessName:NRIC No:Signed byon behalf of LAGENDA JEJAKA SDNBHD (Company No. 865887-P) in thepresence of: Signatory Designation:WitnessName:NRIC No:Execution Page